The indictment
of Bob McDonnell is a gut punch to all who knew him, worked for him,
admired and believed in him and his leadership style. Earlier today, on
Twitter, I posted these ten quick thoughts on the law and politics of the case against him:

1.
I was struck by the outburst of snark and schadenfreude from the
chattering class on Twitter as news of the indictment broke. Whatever
your policy disputes with him, Bob McDonnell played politics in a
different way - thoughtful, respectful, fair - even with his
opponents. The political chattering class would do well to learn to play
Twitter that way, too. There but for the grace of God go we.

2. There has been much focus on the sensational facts of the indictment, but little if any focus on the law.

3.
Bob McDonnell was the Governor of Virginia, elected by people of
Virginia, exercising authority granted to him by the Constitution and
laws of Virginia. And the conduct Bob McDonnell is accused of was
entirely legal under Virginia law. For years, the Virginia General
Assembly has determined that, without an express quid pro quo, no gift
in any amount can corrupt or appear to corrupt a public official. Now,
however, the Department of Justice apparently regards Virginia's law as
insufficient to protect the people of Virginia from the man they
elected to lead them, so it's indicting Bob McDonnell under federal
law. In so doing, DOJ is
substituting its policy preferences for will of the people of
Virginia's elected representatives - charging Bob McDonnell federally
for legal state conduct.

4. And where is that quid pro quo? DOJ has Jonnie Williams, so if there was a quid pro quo, wouldn't he have given it to them? But the indictment of Bob McDonnell pleads no facts proving any express quid pro quo.

5.
Of course, the law on the requirement of a quid pro quo in Honest
Services and Hobbs Act cases is all over the map. In some cases, it must
be express. In other cases, it may be explicit, meaning it can be
implied from the facts and circumstances. In campaign contribution
cases, the quid pro quo generally must be express - because the
underlying act is legal. In gift cases, the quid pro quo generally may
be explicit (i.e., inferred) - because the underlying act usually is
illegal. The McDonnell case is a gift case, but it's more akin to a
contribution case, because unlimited gifts were expressly legal under
Virginia law. DOJ clearly believes it doesn't need an express quid pro
quo to convict Bob McDonnell. Expect this to be a central issue in the
case.

6. Speaking of quid pro quos, how about DOJ's deal with Jonnie Williams?
And what about the former Bob McDonnell staffer who Williams actually
may have offered a six-figure private sector salary to in exchange for
her help? Does she have a deal with DOJ too?

7. I don't know a single fair-minded Virginian who thinks Bob McDonnell deprived us of his "honest services,"
whatever that even means. And I also don't know anyone who thinks Bob
McDonnell used his official position to EXTORT Jonnie Williams, as the
Hobbs Act requires. As for the cover-up counts, I don't think the
government should be able to imprison people for covering up crimes
they are acquitted of.

8.
Everybody's asking, "Is prosecution of Bob McDonnell political?" Of
course it is. That's not the right question. The question is, "Is this
prosecution fair?" From the beginning, the prosecution of Bob McDonnell
has been conducted unfairly. Government agents leaking info to
Washington Post reporters obtained in course of supposedly confidential
law enforcement investigation of presumedly innocent man? DOJ cutting
deals with the alleged briber, and possibly his co-conspirator, charging
Bob McDonnell's wife as an accessory instead? Withholding evidence
that is clearly exculpatory of Bob McDonnell?

9.
For yrs, DOJ has said that public corruption is the federal
government's #1 domestic law enforcement priority. I get that. Corrupt
politics strikes at the very foundation of our democracy &
undermines the legitimacy of its government. Dishonest politicians
stretch the law and push the envelope, so DOJ and the Public Integrity
Section must push and stretch to keep them in check. But poor
personal and political judgment are not federal crimes. The facts
alleged in Bob McDonnell's indictment reflect poorly on his personal
and political judgment, but were expressly legal under Virginia law.
DOJ was right to investigate this matter, but given legal state law
conduct and the absence of an express quid pro quo, it should not have
indicted Bob McDonnell. He has paid and will continue to pay
very high price for his mistakes - shamed, disgraced, and flat broke by
end of this case. He should not lose his freedom too.

10.
Our adversarial justice system depends on defendants having the will
and resources necessary to fight the relatively limitless will and
resources of the government. Bob McDonnell faces a long, costly,
draining fight versus a merciless adversary. I pray he'll have the resolve and funding he needs to see it through.

Chris Ashby, a very well respected DC area attorney, provides a great
summation of the incredibly weak indictment filed by the federal
government against Governor Bob McDonnell. -- The Restoration Fund